October 24, 2016

Horse 2180 - The Supreme Court's Ongoing Supreme Statemate

I think that it is pretty well much a fait accompli that Hillary Clinton will be the next President Of The United States. I've been watching poll results for quite some time now and the path through the Electoral College for Donald Trump looks well and truly blocked. I think that from here, it would take some sort of miracle or bizarre twist of fate for him to sit in the Oval Office chair,as he's consistently polling at figures less than 40% to Hillary's 45% and the only way to beat Hillary would be by flipping blue states to red and that ain't happening.

If we take this as lore, then this has implications down ballot and especially for the one unanswered question which has been hanging around like a bad smell in a house of farts. That is the question of what happens with the currently vacant position of the ninth Justice Of The Supreme Court.
I've run the numbers several times and taken averages across four different news sites and have come to this rough guide to what the Congress is going to look like.

House Of Representatives:
Dem - 193
GOP - 228
Ind - 14

Dem - 55
GOP - 45

Firstly this means that Paul Ryan will more than likely retain his job as Speaker Of The House. In many respects he is the unluckiest man in all of American politics because he comes across as being the only sane man in a mad house. As the VP nominee for Mitt Romney in 2012, his own path to the White House became more complicated but that still means that 2020 could be a viable option for him.
The Senate though is where the abundance of insanity really resides and this is where the story of the last Justice Of The Supreme Court takes place.

Article 2, Section 2, Clause 2 of the US Constitution says that:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.- Article 2, Section 2, Clause 2, US Constitution, 1789

Maybe not a decade ago but probably twenty years ago, this wouldn't have been a problem but in 2015 with the death of Justice Antonin Scalia, in an increasingly toxic political climate, Senate Republicans refused to give assent to any nomination for the Supreme Court that President Obama was going to make; on the basis that he was a lame duck President and that the appointment should be held over for the incoming President whoever they may be.
The Senate is of course perfectly aware of its power under the Constitution and is perfectly legally allowed to withhold its advice and consent if it desires.
That issue has been thrown onto the back burners and was quietly forgotten about until it became obvious that Donald Trump is so toxic that he's not electable. I think that this is probably an example of one of the biggest sunk cost fallacies in political history being played out and should be a herald as to why both the methods deciding who the party nominees are, and the method for deciding who the President is, is so demonstrably idiotic as to be laughable. Except that this is no joke and it isn't funny. The pot of toxic liquid has boiled and now threatens to boil over.
Senator John McCain, expressed the opinion that any Supreme Court nomination that Hillary Clinton would make, would be sight unseen, unacceptable.

Sen. John McCain (R-Ariz) said Monday that if Hillary Clinton is elected, Republicans will unite to block anyone she nominates to the Supreme Court.
Speaking on WPHT-AM radio's "Dom Giordano Program" in Philadelphia, McCain pledged to obstruct any Clinton Supreme Court nomination for the current or any future vacancy.
Sen. John McCain speaks to the media, March 16, shortly after President Barack Obama nominated Merrick B. Garland to the Supreme Court. McCain said that the confirmation of the next Justice should occur after the election. Now he vows to block Hillary Clinton's choice if she wins the election.
"I promise you that we will be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up," he declared.
- NPR News, 17th Oct 2016.

This as I see it, leaves only two possible outcomes. Firstly, if Hillary Clinton is elected as President, then whoever she nominates for the Supreme Court will be rejected because Democrats won't have the numbers on the floor of the Senate to give advice and consent. Secondly, if America collectively loses its mind and votes Donald Trump in as President, then the Republicans will find themselves on the receiving end of their own tactics and whoever he nominates for the Supreme Court will be rejected because Republicans won't have the numbers on the floor of the Senate to give advice and consent.
In both scenarios, both side of politics have played the game of obstruction so elegantly, it should come as a surprise to no one that the machine of government has come to a grinding halt. Both sides have come to the conclusion that the other side is worse than hate incarnate and as such, even if someone like Santa Claus or Lady Liberty herself was put forward as the candidate for the last remaining Justice Of The Supreme Court, they still wouldn't be accepted on the advice and consent of the Senate because party politics is overruling good government.
Actually, right there is the reason why Donald Trump and Bernie Sanders were ever considered in the Presidential race at all. Both of them purport to represent that great swathe of people who feel as though the Congress isn't capable of doing anything. It would appear that they are right.
I wouldn't be surprised if that last remaining Supreme Court chair ends up being vacant for a considerable amount of time.

Although the justices of the Supreme Court are appointed for life, some of them decide that retirement or resignation is the best decision for them. The worst possible outcome is what happens if any more Supreme Court judges start dying off though.
As it is Ruth Bader Ginsburg is 83 years old, Anthony Kennedy is 80 years old, Stephen Breyer is 78 years old; with the next oldest being in their late 60s. That means that statistically, there's a fair chance that within the first term of whoever winds up being president, there could be as many as four appointments which have to be made. If obstructionist Republicans refuse to give the advice and consent of the Senate on all appointments that Hillary Clinton might make, then the Supreme Court might shrink to just five judges through natural causes. The last time that the Supreme Court was that small was in 1807.

Considering that these people make decisions which have implications on how the law is interpreted, in some cases for literally more than a century, then playing politics like this from both sides seems incredibly petty; yet another reason why I think that that US Constitution is a melting pot of insanity.

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